JUDGMENT
Raj Kishore Prasad, J.
1.
Defendants 2 and 3, who are the defendants second party to the suit, are the petitioners before this Court. They have moved this Court against the order of Mr. S.K. Basu, Munsif Sitamarhi, dated 6-8-1955, by which he has allowed the application of the plaintiff-opposite party under Order 9, Rule 4, Civil P.C., and restored the suit to its original file.
2. In support of the rule Mr. Prem Lall, appearing for the petitioners, contends that the order of the Court below is without jurisdiction because no notice was given to him of the restoration application, and the suit was restored without any notice to him and the Court below wrongly treated the application of the plaintiff under Order 9, Rule 4, intend of under Order 9, Rule 9, Civil P. C.
In order to appreciate his point it is necessary to state certain facts. The suit was fixed for 18-7-55 for hearing. On 18-7-55 both parties, namely, the plaintiff and the defendants-petitioners applied for time, but the Court below rejected the applications for time of both the parties, because the suit was an old one, and directed the parties to get ready at once.
Later in the day, when the suit was again taken up none of the parties took any steps nor were they present when the suit was called on for hearing, and therefore, the Court below recurded the following order “Neither party takes any steps in spite of the above order. The suit is, therefore, dismissed for non-prosecution”. The plaintiff thereafter on 25-7-55 made an application, purporting to be under Order 9, Rule 4, Civil P. C which having been filed within time, was fixed for 6-8-55 for disposal.
On 6-8-55 when the Miscellaneous case was taken up for hearing, the lawyer for the petitioners appeared and sought permission of the Court to contest the case by cross-examining the witness of the applicant. This prayer was allowed, and accordingly the plaintiff-opposite party examined a witness, but when the lawyer for the petitioners was asked to cross-examine the witness, he submitted before the Court that he would file a petition for adjournment of the hearing of the case.
The Court considered that it was not proper to adjourn the case in the circumstances mentioned above, and also because it thought, the application had been made under Order 9, Rule 4, Civil P. C. and, therefore, no notice was necessary, and accordingly the witness was discharged and thereafter the Court considered the evidence of the plaintiff, and restored the suit.
3. The main contention of Mr. Prem Lall is that the application for restoration, though purporting to have been made by the plaintiff under Order 9, Rule 4 of the Code, should be treated as an application under Rule 9 of that order, and as such, a notice under Rule 9 (2) of that order was imperative on the petitioners before allowing the restoration. That raises a question whether the suit had been dismissed under Rule 3, or Rule 8 of Order 9. Civil P. C.
The difference is this : Rule 3 contemplates neither party appearing when the suit is called on for hearing; whereas Rule 8 contemplates the
defendant appearing and the plaintiff not appearing when the suit is called on for hearing. Where the suit is dismissed under Rule 3, the plaintiff may either bring a fresh suit, or he may apply for an order to set the dismissal aside.
On the other hand, where a suit is dismissed under Rule 8, a fresh suit is barred, but the plaintiff is given liberty to apply under that rule to set aside, the order of dismissal. Rule 4 does not provide for any notice being given to the opposite party before restoring a suit. But Rule 9, Clause (2) clearly provides that no order shall be made under this rule unless notice of the application has been served on the opposite party.
If, therefore, the application of the plaintiff be considered to be one under Rule 4 of Order 9, as it purported to be, then clearly no notice was required to be served, but if the application is considered to be under Rule 9, then a notice was imperative, and in that case, the order passed under Rule 9 of Order 9 restoring the suit without any notice to the defendants petitioners would obviously be without jurisdiction.
Mr. Prem Lall’s contention is that no doubt the applications for time of both the parties Were rejected on 18-7-1955, but later on that day When the suit was called on for hearing, his clients were actually, present in Court, although they did not respond to the call, nor did they inform the Court that they were present in Court, and, therefore, if the plaintiff had examined any witnesses, they would have been ready to cross-examine him; and, moreover, when their application for time had been rejected, there was nothing more which the defendants were required to do in order to show that they were physically present in Court.
The question whether defendants were actually present in Court or not is a disputed question. The plaintiff has filed a counter-affidavit in this Court, and in para 4 of that counter-affidavit he says that when the case was called out after lunch at about 2 P. M. the parties were not present, nor had they taken any steps, nor any hazri had been filed on behalf of any of the parties, and as such the Court dismissed the suit under Order 9, Rule 3 as neither party had appeared when the suit was called on for hearing. Therefore, the contention of Mr. Prem Lall that his clients were actually present in Court cannot be accepted. Even assuming however, that the defendants petitioners were actually present in Court, the question is whether such appearance would constitute an “appearance” within the meaning of Order 9, Rule 8 Civil P. C. On the order sheet of the Court below the admitted position is that neither party took any steps before the Court below in spite of the order passed earlier under order No. 39, dated 18-7-1955, that the parties must get ready at once.
That clearly shows that neither the plaintiff, nor the defendants petitioners were present in Court, when the suit was called on for hearing. The argument of Mr. Prem Lall obviously overlooks that what Rule 3, or Rule 8 of Order 9 of the Code requires is appearance of the parties when the suit is called on for hearing and not appearance in the suit itself or even physical presence of a party in the Court room, if he chooses to be silent, and does not respond to the call.
The Court is not expected to know every party and to find out for itself which party is present, and which party is not present. It is for the party concerned to file hazri to show his readiness, or respond to the call, or to inform the Court that he is present. If he does not choose to do any of these things he cannot be
considered to have appeared when the suit is called on for hearing.
A party may be said to have appeared in the suit, if he has filed a plaint, or a written, statement, but that does not mean that he will be deemed to have been present when the suits is called on for hearing, if he is not actually present in person, or by a pleader instructed, to answer all material questions about the case as laid down in the Code itself.
No doubt the defendants filed a petition for time earlier in the suit before the Court on the day when the suit was taken up for hearing, out the application for time was rejected, and actually when the suit later on was called out for hearing no one responded to the call, and not one took any steps, and as such it cannot be said that the defendants should be regarded as having “appeared” in Court when the case was called on for hearing.
In my opinion, therefore, the defendants cannot be said to have appeared within the meaning of Rule 8 of Order 9, Civil P. C., so as to oblige the plaintiff to make an application for restoration of the suit under Rule 9, and not under Rule 4, of Order 9, Civil P. C . This contention of Mr. Prem Lall must therefore, be rejected. Mr. Prem Lall has placed strong reliance on — ‘Bajit Lal v. Rameshwar Singh’, AIR 1928 Pat 335 (A).
He particularly relies on the following passage in the judgment of Macpherson J. at page 336:
“He contends in the first place that the order of the 5th January dismissing the suit was passed not under Order 9, Rule 8 but under Order 9, Rule 4. In my opinion there is no foundation at all for this contention. It does not follow because the defendant applied for time that he was not really ready to proceed, and that therefore, he should be held to have been absent.”
In this suit, on the date fixed the plaintiff took no steps and the defendant applied for time, but the case was dismissed for default in his presence, and the Court ordered the defendants’ petition to remain on the record as no other order thereon was necessary. It would, therefore, appear that when the case was actually dismissed for default, the plaintiff was absent but the defendant was present and he had applied for time.
In those circumstances the case was dismissed for default, and his Lordship held that really the application for restoration fell under Order 9, Rule 8, and not under Order 9, Rule 4, Civil P. C. In the present case, the facts are just the opposite. By order No. 39, dated 18-7-1955, the application, for time filed by both parties were rejected, and the parties were asked to get ready at once.
Later in the day on 18-7-1955, when the suit was again taken up for hearing, neither party took any steps and therefore, the only course open to the Court below was to dismiss the suit for non-prosecution. I cannot, therefore, find any justification for holding that the application of the plaintiff was not an application correctly made under Rule 4 of Order 9, Civil P. C., since to such a case Rule 9 of Order 9, Civil P. C., has absolutely no application.
The case cited by Mr. J. C. Sinha appearing for the plaintiff opposite party of — ‘Abinash Chandra v. Surjya Narayan’, ILR (1948) 1 Cal 141 (B), is to the point, and in that case what constitutes “appearance” within the meaning of Order 9, Rule 3, or Rule 8, which I have mentioned above has been discussed and considered.
4. In the result, the rule is discharged, and
the application is dismissed with costs, hearing
fee Rs. 16/- payable to the plaintiff.